The widespread enthusiasm for liberal democracy has many sources.
Liberal democracy is the form of government most suited to liberal
premises about the moral freedom of the individual. (1) It is the best
political mechanism for controlling political agents. (2) It decreases
the likelihood of internal armed conflict, and increases protection for
other basic human rights. (3) It promotes international security because
democracies rarely if ever go to war with one another. (4) It
effectuates broader forms of international cooperation. (5) It may even
be required by international law. (6)

It is against this background that I want to examine a prevalent
form of criticism targeted at the United States--the world's most
powerful and, in some respects, most vigorous liberal democracy. The
criticism is that the United States acts wrongly, or unjustly, when it
fails to take affirmative steps that would help other nations and their
peoples. In particular, the United States is frequently criticized for
failing to sign or ratify treaties (such as the Rome Statute creating
the International Criminal Court) that many believe would increase the
welfare of non-Americans, and for failing to intervene in countries
(such as Rwanda) to prevent atrocities.

This criticism comes in two forms. One focuses on U.S. national
interest, and maintains that the welfare of U.S. citizens would be
enhanced in the fairer, safer, and more prosperous world that would
result from increasing assistance to others. The basic claim here is
that the United States harms itself and its citizens by not ratifying
certain treaties and by failing to intervene more frequently and with
greater intensity. I have no quibble with this form of argument, which
in my view properly focuses on what is best for U.S. citizens, on
leaders' information errors, on means-ends rationality (and related
issues like unintended consequences), and on democratic-process
pathologies such as time inconsistencies and interest group capture.

A second form of criticism focuses on the United States'
cosmopolitan duties. It maintains that the United States should ratify
global treaties and intervene more vigorously to stop human rights
abuses, even if doing so would lower net U.S. welfare. This argument
emphasizes that the United States should act to help peoples and nations
outside the United States, even when the actions would not survive a
U.S.-focused cost-benefit analysis. The argument does not try to clarify
the U.S. national interest. It maintains that the United States should
focus less on the interests of its own people, and more on the interests
of all humanity.

The cosmopolitan duty argument plays a prominent role in recent
cosmopolitan thinking in philosophy. (7) It also underlies the charge of
U.S. unilateralism, especially when the purported unilateralist action
is the United States' refusal to ratify prominent global treaties.
More broadly, the cosmopolitan duty argument is frequently made in
conjunction with the national interest argument, even though the two
arguments are analytically distinct. Often, the national interest
argument is motivated by, and is a cover for, cosmopolitan duty
concerns.

This essay critiques the cosmopolitan duty argument. My thesis is
that underappreciated theoretical, practical, and moral factors limit
the duty of liberal democracies to engage in cosmopolitan action. The
institutions needed to make liberal democracy work cannot easily
generate cosmopolitan action. The problem is not just the absence of
democratic support for cosmopolitan policies. Constitutional and
collective action hurdles, and other difficulties, constrain
cosmopolitan action as well. Cosmopolitan argument must be bounded by
institutional and moral constraints that arise in the
domestic-democratic sphere. We cannot even have a coherent ideal of
liberal democracies' cosmopolitan duties unless we understand these
realistic limits on what liberal democracies can do.

I should emphasize at the outset that I do not claim that States
are never other-regarding. Such a claim might be wrong, and in any event
would be difficult to prove. Nor do I deny that States or other
collective entities can be subjects of moral responsibility. My argument
is more modest. It is that institutional and related hurdles make it
very difficult for liberal democracies to engage in strong (i.e.,
nontrivial) cosmopolitan action, by which I mean (a) entering into
treaties that cannot be justified on local welfare-enhancement grounds,
and (b) engaging in humanitarian intervention that is costly to the
intervening state in terms of money and lives.

One response to my argument is that if liberal democracies cannot
generate strong cosmopolitan action, then we must search for new forms
of domestic governance to better serve the ends of international
justice. I will examine this claim below. But it is worth noting at the
outset that many cosmopolitan theorists avoid this move. One reason why
is that plausible superior alternatives to liberal democracy are hard to
fathom. Another is that cosmopolitan theorists tend to believe that
liberal democracy is the optimal form of domestic governance. Indeed,
some claim that there is a conceptual link between liberal democracy and
cosmopolitan duty, and that "the domestic aspect of cosmopolitanism
is ... liberal democracy." (8) On the whole, cosmopolitan theorists
try to have it both ways, maintaining a commitment to liberal democracy
and insisting that liberal democracies should act with greater
cosmopolitan regard. My argument is that these co-commitments cannot
easily be reconciled.

This leaves us in the messy but real world: a world of stark
inequality and manifest injustice between nations and peoples that the
least bad form of domestic governance (liberal democracy) seems
incapable of rectifying in a manner, and time frame, that many would
like. The Article does not criticize the cosmopolitan stance per se,
however, and does not conclude on this pessimistic note. Rather, the
Article suggests ways that cosmopolitan sentiments can be more fully
realized by being more realistic.

I. THE INSTITUTIONAL TURN IN COSMOPOLITAN THEORY

The legal, policy, and philosophical literature is full of claims
that the United States should act with greater cosmopolitan regard. The
legal and policy literature rarely examines or defends the ascription of
strong cosmopolitan duties to liberal democracies. The philosophical
literature does, however.

A. From Individual to Institutional Duties

Cosmopolitan theory begins with the premise that every human
being's life is equally valuable, regardless of group or national
membership. Cosmopolitanism seeks to enhance attachments and duties to
the community of all human beings, regardless of national or local
affiliation, and to attenuate attachments and duties to the
nation-state, fellow citizens, and local culture.

Some believe that cosmopolitan premises require relatively well-off
individuals to assist relatively non-well-off individuals, including
noncompatriots. (9) In recent years, however, cosmopolitan theorists
have begun to reject (or attenuate) the ascription of strong
cosmopolitan duties to individuals. They have begun to argue instead
that these duties are best viewed as attaching to domestic institutions
(e.g., national governments) and, derivatively, to international
institutions. The main reasons for this "institutional turn"
are that cosmopolitan duties are too demanding for individuals, and that
institutions can better achieve international social justice. In short,
cosmopolitan theorists use "plausibility limitations" on
individual duties as a basis for ascribing cosmopolitan duties to
political institutions.

Martha Nussbaum's recent work provides a clear example.
Nussbaum claims that individuals are not capable of generating a
"just global order through human psychology alone." (10) Why?
Because human beings have an "imperfect and uneven"
psychology, "emotions" that "link us to our own sphere of
experience," and "critical skills" that are "often
undermined from within by fear, haste, and selfishness, and subverted
from without by misinformation, competition, and various forms of
seduction." (11) In addition, "assigning responsibilities to
people one by one is a recipe for a massive collection action problem,
and for individual lives that are so consumed with figuring out who owes
what to whom that there is no space left for either special duties or
the enjoyment of life." (12)

Nussbaum concludes from these limitations on individual human
action that "institutions have to be a large part of the
solution," particularly "on the global plane." (13) She
writes that "[p]olitical institutions that embody a moral ideal can
coerce morally adequate results in the absence of even a single perfect
human being." (14) Institutions are also better able than
individuals to solve collective action problems, and to ensure
"fairness in the distribution of burdens." (15) Nussbaum
proposes that national institutions create the following international
institutions:

[A] world court that would deal with grave human-rights violations;
a set of world environmental regulations, plus a tax on the
industrial nations of the North to support the development of
pollution controls in the South; a set of global trade regulations
that would try to harness the juggernaut of globalization to a set
of moral goals for human development ...; a set of global labor
standards ...; and, finally, various forms of global taxation that
would effect transfers of wealth from richer to poorer nations. (16)

Michael Green offers a similar line of argument. (17) Green
contends that we cannot properly attribute cosmopolitan duties to
individuals. He reaches this conclusion on the basis that
"commonsense morality" (18) in the global context is impeded
by the "phenomenological features of [individual] agency."
(19) Three important features of commonsense morality are that
individuals, and not groups, are the "primary bearers of
responsibility"; that individuals have greater duties with respect
to acts than omissions; and that individuals have "special
obligations" and thus give priority to the near over the remote.
(20) The commonsense conception of morality is a restrictive one that
precludes the ascription of responsibility to individuals for the
problems of global injustice.

Like Nussbaum, Green thinks that "institutional agents do not
face the same limitations as individual agents." (21) Institutions
are better at collecting and processing information. They have
"power" and efficacy, and thus "can alter mass
behavior." (22) And they can better spread the costs of action.
These differences between the capacities of individuals and institutions
justify attributing greater responsibilities to institutions. (23) For
example, since "institutional agents are better able to perceive
and act on their [sic] consequences of their omissions than individuals
are," it makes sense to attribute less significance to the
distinction between action and omission when we are attributing
responsibility to institutions. (24) "Among other things, this
means that "there is more room to hold government[] responsible for
taking steps to regulate the harm its citizens collectively cause, even
though it does not cause the harm itself." (25)

Iris Young also argues that obligations of social justice are
primarily owed by institutions rather than by individuals. The reasons
she gives should by now be familiar: "Individuals usually cannot
act alone to promote justice; they must act collectively to adjust the
terms of their relationships and rectify the unjust consequences of past
and present social structures, whether intended or not." (26) Young
proposes "a global system of regulatory regimes to which locales
and regions relate in a federated system," and she suggests that
"reform of the United Nations System is one reasonable goal"
toward this end. (27)

Thomas Pogge similarly argues for institutional duties (or, as he
calls it, an "institutional" as opposed to
"interactional" conception of cosmopolitanism) as a way to
redress the problem of imposing unrealistically demanding duties on
individuals. (28) More specifically, Pogge proposes a global resource
tax--a one percent consumption tax on all national resources that would
be:

used toward the emancipation of the present and future global poor:
toward assuring that all have access to education, health care,
means of production (land) and/or jobs to a sufficient extent to
meet their basic needs with dignity and to represent their rights
and interests against the rest of humankind: compatriots and
foreigners. (29)

Other cosmopolitan theorists make similar arguments. (30) These
arguments purport to be both realistic (as opposed to utopian) and
consequentialist. They are realistic because they define and limit what
justice requires by some notion of what is possible; "can"
limits "should." In this way, the arguments strive to be
relevant to modern policy debates. They are consequentialist in focusing
on schemes that can produce good outcomes (from various perspectives of
what constitutes goodness). These arguments ascribe duties to
institutions with an eye to best achieving certain results (such as
eliminating world poverty, ending global warming, etc.).

B. The Relevance of Plausibility Constraints

The cosmopolitan theories summarized above invoke five types of
limitations on individual capacities as a basis for ascribing duties to
institutions. The first is based on commonsense intuition. In rejecting
the ascription of strong cosmopolitan duties to individuals, appeal is
made to conceptions of human agency that are informed by our ordinary
practices and intuitions. The second concerns limits grounded in human
biology or psychology. Certain types of cosmopolitan duties--such as,
for example, Peter Singer's version of utilitarianism (31)--make
literally superhuman demands of calculation and concern. The third type
of limitation is moral. Certain cosmopolitan duties are inconsistent
with any reasonable conception of a good life, which must allow space
for individuals to flourish without regard to the demands of morality,
and especially without regard to the extraordinary demands of some
cosmopolitan moral claims. A fourth concern is the problem of
noncompliance. Some duties on individuals must be attenuated by the fact
that others will not do their fair share. (32) Fifth, and relatedly,
individuals often face severe collective action hurdles.

Why is it appropriate to invoke such limits in cosmopolitan
argument?

The main answer is that political theory must, in Thomas
Nagel's words, be "motivationally reasonable." As Nagel
puts it: "If real people find it psychologically very difficult or
even impossible to live as the theory requires, or to adopt relevant
institutions, that should carry some weight against the ideal."
(33) For similar reasons, John Rawls imposes plausibility constraints on
the ideal (or full compliance) theory of justice that emerges from the
original position. As Rawls puts it, an important consideration for
ideal theory is "men's capacity to act on the various
conceptions of justice," a consideration that includes
"general facts of human psychology and the principles of moral
learning." (34) These principles are relevant because in the
original position, "[i]f a conception of justice is unlikely to
generate its own support, or lacks stability, this fact must not be
overlooked," for parties in the original position must suppose that
other parties "will adhere to the principles eventually
chosen." (35) Even when we consider nonideal (or partial
compliance) theory, human frailty remains relevant. As Liam Murphy puts
the point, "if our theory has implausible implications for the
nonideal case, the theory may have some political interest, but it would
fail as a normative political theory." (36)

Something like this reasoning underlies the invocation of human
frailty as a basis for ascription of institutional responsibility. Any
theory that aims to be realistic and consequentialist in the senses
described above must be motivationally reasonable. It must be capable of
assent without making extraordinary psychological or physical or moral
demands, and it must set forth plausible mechanisms for achieving these
ends.

There are at least two significant difficulties in capturing which
duties are motivationally reasonable. The first is the danger of
thinking that "any radical departure from accustomed patterns is
psychologically unrealistic." (37) This is the danger of
confounding the familiar with the necessary, with viewing as unalterable
that which is merely inconvenient to change. Often, change is not
impossible, but rather simply very costly. A second and related
difficulty concerns how we identify plausibility limits. Philosophers
speak of certain duties as inconsistent with a morally attractive
conception of human life; they rely a great deal on intuitions about
"commonsense morality," and they often appeal to human
biological and psychological limits.

In sum, the institutional turn in cosmopolitan theory ascribes
strong cosmopolitan duties to States based on the premise of
plausibility constraints on individual cosmopolitan action. The next
Part asks whether similar plausibility constraints limit cosmopolitan
action by liberal democratic States as well.

II. LIBERAL DEMOCRACY AND COSMOPOLITAN DUTY

This Part describes the theoretical, practical, and moral
limitations on the ascription of strong cosmopolitan duties to liberal
democratic governments. My claim is that these limitations are akin to
the biological, moral, and psychological "plausibility
constraints" on individual action that cosmopolitan theorists
invoke as a justification for ascribing cosmopolitan duties to political
institutions.

This Part's focus on the United States is justified by the
theme of this Symposium, and by the fact that the United States is a
leading target of cosmopolitan criticism. The United States differs from
other liberal democracies in its constitutional details, its
citizens' sentiments, its military and economic might, and in many
other respects. Nonetheless, as I briefly discuss in Part III.A, I
believe the basic points below hold for all liberal democracies.

A. The Source and Significance of Weak Cosmopolitan Sentiments

An individual acts altruistically if she has the goal of benefiting
another person, she benefits that person, and she could have done better
for herself had she chosen to ignore the effect of her action on the
other person.38 The social science literature now confirms what common
sense suggests but what some have doubted: Individuals are genuinely
altruistic. (39) But if individuals are altruistic, why aren't the
liberal States that represent them?

A similar puzzle arises in the corporate context. Individual
shareholders are altruistic. But corporations generally are not. (40)
The standard explanation is that a corporation furthers the purpose for
which its members incorporated, which generally has to do with advancing
member welfare, not nonmember welfare. The same logic might apply to the
State.

This argument is open to the objection that a corporation (or any
group) may consist of cosmopolitan-minded individuals who have organized
to pursue cosmopolitan ends. The theories sketched in Part I correctly
argue that institutions can (in theory) engage in cosmopolitan action,
and that cosmopolitan individuals can act through such institutions more
effectively than acting alone. There is power in numbers. Institutions
can efficiently gather and transmit the information needed for
collective action. They can generate economies of scale in a number of
contexts that lower the costs of action. They can monitor individual
contributions and punish free-riding, both of which strengthen
collective action. They can provide norms and focal points to motivate
and coordinate individual participation in group action. And they can
solve psychological collective action problems. Cosmopolitan-minded
individuals might lack motivation for cosmopolitan action because of a
perceived inability to make a difference through individual action
alone. An institution with power to effectuate change can motivate such
individuals to action by clarifying the causal pathway between
individual action and cosmopolitan change, and by helping the individual
to envision her action as part of an undertaking involving many others.

These are the basic mechanisms that allow churches, charities, and
other nongovernmental organizations to achieve greater collective
cosmopolitan ends than group members could achieve acting on their own.
But it does not follow that States can commit similar acts of
cosmopolitan charity. There are many salient differences between these
institutions and States.

First, States are much larger. Their membership does not consist of
self-selected members with relatively homogenous and intense
cosmopolitan sentiments. Rather, members of pluralistic societies vary
significantly in their commitments (if any) to cosmopolitan charity.
Many citizens have no cosmopolitan sentiments, or have anticosmopolitan
sentiments. Others have weak cosmopolitan sentiments. Even strongly
cosmopolitan-minded citizens can differ sharply about the appropriate
focus of cosmopolitan charity. Supporters of aid for Israel and
supporters of aid for the Palestinians, for example, might cancel one
another out in the aggregate.

Heterogeneity of individual preferences related to cosmopolitan
action, taken alone, is a reason to be skeptical of the claim that
States can perform strong cosmopolitan duties. A major justification for
the move to cosmopolitan duties for States is that individuals face
collective action problems in performing cosmopolitan duties. (41) If
citizens possessed intense and homogenous cosmopolitan sentiments, this
argument might, for reasons just canvassed, make sense. But if the bulk
of individuals do not have an interest in cosmopolitan charity, or if
their interests are wildly varied and uneven, there is no collective
action problem at the State level to overcome, and the move to political
institutions achieves little.

Another crucial difference between a liberal democratic State and,
say, Oxfam International, is that the State does not organize itself for
the purpose of engaging in acts of cosmopolitan charity. The dominant
purpose of any State is to create a community of mutual benefit for
citizens and other members, and more generally to preserve and enhance
the welfare of compatriots. The Constitution, for example, was designed
to create a more perfect domestic order, and its foreign relations mechanisms were crafted to enhance U.S. welfare. (42) The same is true
of liberal democracies generally. In this sense, a liberal democracy is
more like IBM than Medecins Sans Frontieres, and skepticism about
corporate or institutional altruism makes more sense.

A third obstacle is that although individuals are altruistic, their
capacity for other-regarding action is not unbounded. Individuals tend
to focus their attention, energies, and altruism on members of their
community (friends, family, and compatriots) with whom they identify and
share a common bond. Many view local attachments, and their cultivation,
as central to human flourishing. (43) Others see patriotism and related
local-regarding community-building mechanisms as necessary prerequisites
to a flourishing State, and especially to a flourishing democracy. (44)
I am sympathetic to these normative claims, but for now I need only
point to the related positive point that self-sacrifice seems related to
solidarity, which in turn is related to (physical, cultural, or
familial) proximity. Viewing community from the State level, most
citizens are much more likely to sacrifice for a compatriot than a
noncompatriot, especially when giving to noncompatriots comes at the
expense of needy compatriots. Even within the State community, altruism
does not come close to ensuring that the well off adequately care for
those who are not well off. State coercion is needed for most in-State
welfare transfers. Given this relatively weak altruism toward
compatriots, we should not expect individual altruism to extend to
people who are physically and culturally much more distant.

None of this is to deny that solidarity is not perfectly
coextensive with borders, or that some individuals have strong
cosmopolitan commitments, or that many citizens have some regard for,
and are willing to sacrifice a little for, noncompatriots. The point is
simply that, as some cosmopolitans realize, (45) widespread and intense
cosmopolitan sentiments simply do not exist.

To the extent that citizens do in fact have weak or nonexistent cosmopolitan sentiments, political institutions in liberal democracies
cannot easily engage in cosmopolitan action. In a liberal democracy,
foreign policy must be justified on terms acceptable to voters. (46) The
theory of democratic foreign policy is that voters will throw out
politicians who deviate too far from their foreign policy preferences.
This means that political leaders who care about reelection cannot
easily engage in acts of international altruism much beyond what voters
or interest groups will support. Because the matter is so important, the
U.S. Constitution imposes limits, over and above electoral recall, that
reinforce the principal's (i.e., voters') control over the
agent (i.e., leaders).

Consider the war power. War is among the most serious and fateful
acts a State can undertake. This is one reason why the framers gave
Congress the power to declare war. The meaning and scope of this
provision is contested, especially in modern times when presidents have
asserted independent war powers more aggressively. (47) But at least one
idea behind the War Powers Clause was to place an "effectual check
to the Dog of war by transferring the power of letting him loose from
the Executive to the Legislative body." (48) The Framers aimed to
limit the President to wars fought in the interests of, and thus
supported by, the people most affected by war--the voters. This
agency-cost-reducing justification for a legislative check on the war
power is the one that Kant offered as the basis for his predicted
democratic peace. (49) And it has become one of the normative
cornerstones of the democratic peace thesis. (50)

A similar justification explains the Constitution's
involvement of the legislature in the process of ratifying treaties and
other legally binding international agreements. (51) Absent a contrary
indication in an agreement or some other special circumstance,
international law presumes that nations will indefinitely comply with
international agreements. (52) Compliance with international agreements
is important to secure the reciprocal benefits of the agreement, and to
maintain a reputation for compliance for purposes of future
negotiations. For these reasons, a State should not enter into an
international agreement unless it is sure it can comply with its terms.

Legislative participation promotes compliance through several
mechanisms. Some have to do with the conveyance of credible information
to treaty partners about the likelihood of compliance. (53) More
relevant for present purposes is that legislative consent, like
Congress' war declaration power, reduces the agency costs of
presidential action. The legislature ensures that the agreement
negotiated by the President aligns with the principal whose interests he
purports to represent--U.S. voters. Of course, the President (who is
also elected) might in some contexts more accurately represent voter
preferences than legislators--especially when one factors in the
aggregation and related collective action difficulties that attend the
legislative process. But this just shows that the Constitution is biased
against international agreements, just as it is biased against war. The
requirement of dual executive-legislative consent promotes compliance by
increasing the likelihood that the United States enters into only those
agreements that increase national welfare. But this benefit comes at a
cost of not reaching some agreements (i.e., ones that the President
failed to negotiate or that the legislature failed to consent to) that
would have enhanced national welfare. This is a defendable tradeoff to
ensure that treaties promote national welfare, especially since treaty
compliance depends on both executive and legislative action.

In these and other ways, the U.S. Constitution--and, with different
mechanisms, every liberal democracy--ties foreign policy action to voter
preferences. Realists have long decried this tie, for they view the
democratic process as an obstacle to a rational and coherent foreign
policy. (54) The realist criticism overlooks the many countervailing
foreign relations benefits of democratic foreign policy, only some of
which are outlined above. (55) The important point for now, however, is
not the normative issue, but rather the institutional fact that liberal
democratic institutions cannot easily engage in cosmopolitan action
unsupported by the people.

Humanitarian intervention provides the best example. Intellectual
and policy elites have increasingly urged liberal democratic governments
to intervene to prevent human rights atrocities in other states. (56)
But despite millions of lives lost as a result of these atrocities in
the twentieth century, and despite recent CNN-covered atrocities in
Rwanda, Bosnia, Kosovo, and East Timor (among other places), Americans
simply are not willing to spend blood and treasure on humanitarian
interventions that do not offer a U.S. welfare-enhancement
justification.

To be sure, U.S. political leaders and voters sometimes support
humanitarian interventions to relieve human suffering, especially
starvation. (57) But they do not support these interventions if they are
expensive or threaten nontrivial losses of American lives. (58)
Politicians understand this and act accordingly. This explains the Bush
and Clinton administrations' long delay in intervening to stop the
atrocities in Bosnia, and the eventual decision to do so with
"pinprick" air attacks rather than ground troops. (59) This is
why the otherwise-internationalist Clinton administration pulled out of
Somalia when Americans began to suffer casualties. (60) It is one reason
why the United States declined to intervene in Rwanda. (61) And it is
the lesson of the Kosovo intervention. Even with a mixed
strategic-humanitarian justification for intervention, U.S. fighter
pilots flew at high altitudes and took other casualty-avoiding steps,
and the Clinton administration precommitted not to use high-casualty
ground troop operations. (62)

The absence of democratic support is a fundamental check on
humanitarian intervention. As David Luban notes:

In a democracy, the political support of citizens is a morally
necessary condition for humanitarian intervention, not just a
regrettable fact of life. If the folks back home reject the idea of
altruistic wars, and think that wars should be fought only to
promote a nation's own self-interest, rather narrowly conceived,
then an otherwise-moral intervention may be politically
illegitimate. If the folks back home will not tolerate even a single
casualty in an altruistic war, then avoiding all casualties becomes
a moral necessity. (63)

These points are overlooked by those who, with increasing fervor,
call for humanitarian intervention without regard to its lack of popular
support. For example, Samantha Power's prominent critique of the
United States's failure to intervene to stop various genocides
devotes little attention to the absence of popular support for costly
humanitarian interventions. The little attention she does give the issue
is devoted to criticizing leaders for deferring to popular opinion. (64)
Power fails entirely to grapple with Luban's point, or with
constitutional requirements related to the use of force abroad. The
democratic deficit for humanitarian intervention is also missed by those
who appear to oppose wars that lack congressional authorization except
when those wars are fought for humanitarian ends. (65) The requirement
for democratic support does not distinguish between wars fought on
humanitarian grounds and those fought for national security reasons. If
any distinction emerges in practice, it is one that favors
welfare-enhancing wars fought for national security reasons, and
disfavors humanitarian interventions that lack a national security
justification.

In sum, the democratic hurdles to cosmopolitan action should give
pause to those who believe that individuals possess limited cosmopolitan
sentiments, but who nonetheless ascribe strong cosmopolitan duties to
liberal democratic governments. Individuals act through and limit
liberal democratic institutions. If there is reason to doubt that
individuals lack powerful cosmopolitan motivations, there is reason to
believe that this paucity of motivation will be reflected in the output
of liberal democratic institutions.

B. A More Realistic View of the Democratic Process

The above analysis is incomplete in at least two important
respects. It ignores evidence that U.S. voters might in fact be
cosmopolitan-minded. And it assumes that leaders are perfect agents of
the voters, which they are not. Even taking into consideration these
points, however, it remains doubtful that liberal democracies can engage
in strong cosmopolitan action.

We basically have two ways to tell whether and to what extent
voters have cosmopolitan sentiments: how their representatives vote, and
what opinion polls say. Neither method is foolproof, and tricky issues
arise when polls say one thing and representatives act otherwise.

Consider the ICC treaty and the Kyoto Accord, both of which (many
believe) might require cosmopolitan action if ratified by the United
States. Opinion polls consistently find that a majority of U.S. voters
support these treaties. (66) But just as consistently, political
representatives from both parties oppose these treaties. For example, by
a vote of 97-0, the Senate in 1997 resolved that the United States
should not sign a Kyoto-related treaty that (as Kyoto contemplated) did
not extend greenhouse gas reduction requirements to developing nations,
or that would "result in serious harm to the economy of the United
States." (67) Similarly, in 2002 Congress enacted a statute by
overwhelming majorities that opposed U.S. participation in the
International Criminal Court. (68) To make the puzzle more complex,
political leaders and other elites are significantly more committed to
internationalism than U.S. voters. (69) This suggests that the
disconnect between voters and leaders should run in the opposite
direction.

Why would leaders more committed to international engagement than
voters oppose ambitious international treaties that voters appear to
support? There are several possible explanations, all of which further
illustrate the plausibility constraints on U.S. cosmopolitan action.

The first point is that voter support for the ICC and Kyoto
treaties is not by itself evidence of cosmopolitan sentiment. As the
national interest argument sketched in the Introduction suggests,
internationalism is not the same as cosmopolitanism, because in many
situations international acts enhance domestic welfare. Many Americans
support the treaties on welfare-enhancement grounds, and the surveys do
not distinguish the two possibilities. (And, of course, voter motives
can be mixed.)

Moreover, the most comprehensive survey of voter attitudes toward
U.S. foreign relations confirms what casual empiricism and other
evidence (such as the United States' paltry foreign aid as a
percentage of GNP) suggests: "Most altruistic goals of U.S. foreign
policy, those primarily concerned with the welfare of people in other
countries other than the United States, are not given very high priority
by the U.S. public." (70) Polls consistently find that U.S.
citizens "much more than foreign policy leaders tend to put a high
priority on devoting resources to domestic spending programs rather than
to foreign affairs," a tendency that has "grown stronger after
the end of the cold war." (71) In this light, cosmopolitan
sentiment related to the ICC and Kyoto treaties is probably not deep or
intense. This in turn means that well-organized groups with more intense
anticosmopolitan preferences--such as business interests who would
suffer the main burden of Kyoto's costs--can be more successful in
the democratic process. Many environmentalists decry such interest group
domination of U.S. international environmental policy as a perversion of
the democratic process and the national interest. But whether or not
interest group politics are desirable in a democratic polity (many
believe they are), it is an inherent feature of democratic process.

Another explanation for the puzzle is that politicians are much
more informed than voters about the treaties and in particular about
their costs. In many polls finding support for the Kyoto Accord and the
ICC, most respondents had never heard of these treaties before being
asked about them. (72) Moreover, poll questions are rarely framed in
ways that discuss noncompliance by other nations, or the costs of
enforcement and noncompliance. When the rare poll asks how much voters
would be willing to pay for a treaty regime, support for the regime
drops dramatically as the costs increase. (73) As suggested above, polls
also show similar cost-sensitivity with respect to humanitarian
intervention. (74) Political leaders have powerful reelection incentives
to learn about the costs of international action, and the resources to
do so. They tend to base their judgments on these facts rather than
polling data, for they know they will be accountable to voters when the
costs of international action become apparent. Leaders recognize that
constituents do not generally support international regimes that are not
cost-justified, and they act accordingly.

A related cost of treaty regimes is international noncompliance.
National leaders are always uncertain, to some degree, about the
information, preferences, and motivations of other nations. As a result,
they rightly worry about other nations' noncompliance with norms
and agreements. The noncompliance consideration--which takes us from
ideal to nonideal theory on the international stage--counsels caution in
embracing international regimes that involve national sacrifices and
that depend for their efficacy on compliance by other nations. Precisely
this concern underlies political opposition in the United States not
only to the Kyoto Accord, but also to the Test Ban Treaty, the Landmines
Convention, and the Bio-Weapons Convention.

This last point is overlooked by the institutionalist strand in
cosmopolitan theory. Even if individual citizens did face a collective
action problem in acting on their cosmopolitan sentiments, national
institutions cannot necessarily solve the collective action problem.
Rather, it changes the level and nature of the collective action
problem. Many cosmopolitan proposals (for example, all of
Nussbaum's proposals listed above) require international
cooperation. Information and power asymmetries, as well as the absence
of a centralized enforcement mechanism, make international collective
action problems difficult to overcome even when there is a plausible
argument that the international regime, if successful, would enhance the
welfare of every participating State. The usual collective action
hurdles to self-enforcement are all the more severe when the collective
action comes at the expense of national welfare, for (among many other
reasons) the incentives to cheat are overwhelming in this context, and
every State knows it.

These latter few considerations--about intensity of preferences,
interest group politics, voter misinformation, aggregation difficulties,
and international collective action hurdles--require qualification of
the earlier assumption that liberal democratic leaders are simple agents
for voters. When voters' anticosmopolitan preferences are clear,
informed, intense, and unopposed, and when international collective
action problems can be overcome, leaders can act as faithful agents. But
often the connection between voter preference and international
political action is skewed and complicated. For the reasons already
canvassed, these complexities can further raise the bar to cosmopolitan
action.

The opposite may be true as well. The slack between voter
preferences and leader action can cut in the opposite direction, and
theoretically permits leaders to act with cosmopolitan charity beyond
what constituents support. An important strand of democratic theory has
always held that elected representatives should not be yoked to
constituent preferences, especially when constituents are relatively
uninformed. (75) Leaders should exercise wisdom and judgment in
deciding--subject to electoral recall--what is best for their
constituents. They should lead, not follow. They should shape
constituent preferences, perhaps to reflect their more cosmopolitan
outlook. And their capacity to do so is enhanced by the fact that the
public pays relatively little attention to foreign affairs.

This conception of the democratic process does not, in my view,
mean that the U.S. government could plausibly engage in more generous
acts of cosmopolitan charity. Even political leaders with powerful
cosmopolitan sentiments who are unworried about reelection hesitate to
engage in costly altruistic acts abroad.

One reason why leaders hesitate is that, whatever their personal
sentiments, they have (and perceive themselves to have) a moral duty, in
virtue of their election, their oath, and their identity, to promote the
welfare of the State and its citizens. The more fluid conception of
democracy described above gives leaders discretion to identify what
furthers constituents' interests. It does not permit leaders to
impose significant local sacrifices for the sake of nonnationals beyond
what can be justified in terms of local welfare-enhancement. Political
leaders believe this and act accordingly.

Persistent domestic institutional constraints also hinder leader
attempts to commit acts of cosmopolitan charity that exceed constituent
preferences. It is really the President, and not legislators, who
theoretically has the discretion to skirt short-term constituent
pressures in this way. The President has broad independent foreign
relations powers, and is not burdened by collective action problems to
nearly the same degree as Congress. And yet the President cannot act too
far beyond the wishes of Congress (or the voters). The President's
unilateral discretion is probably at its height with respect to war. But
in this context, the President is unambiguously accountable to the
people, and, in any event, an uncooperative legislature can still
retaliate via legislation, hearings, appointment hold-ups, defunding,
and the like. With respect to international agreements, foreign aid, and
most other international initiatives, the President's room for
unilateral action is more limited because legislative participation,
support, and funding is more directly relevant. In addition, any
short-term, unilateral, non-welfare-enhancing action the President takes
is reversible by the people and their representatives in the medium
term. This is precisely how foreign policy in a democracy is designed to
work.

This conclusion is consistent with political leaders having wide
discretion to emphasize and act upon what they believe enhances U.S.
welfare, especially in the short term. For example, the Clinton and Bush
administrations interpreted and reacted differently to the Iraqi threat
to national welfare, and took different attitudes toward the importance
of particular treaty regimes. More broadly, current events are full of
examples of liberal democratic leaders departing from apparent
constituent foreign policy preferences in the name of promoting a
national welfare that leaders believe constituents do not fully
appreciate. Nothing in my analysis suggests that these departures are
illegitimate. Only time and election returns will tell whether the
leaders' assessment of voters' interests was correct. My point
is simply that the various mechanisms described above ensure that--at
least in the medium term and often in the short term--cosmopolitan
action by a liberal democracy is bounded by constituent preferences.

III. TOWARD A MORE REALISTIC COSMOPOLITANISM

The last Part sketched the plausibility constraints on cosmopolitan
action by liberal democracies. If these observations are correct, one
should hesitate before claiming that States have duties to engage in
strong cosmopolitan action. "Can" limits "should."
Just as morality can be too demanding of individuals, it can be too
demanding of institutions. At the very least, the ascription of
cosmopolitan duties to liberal democratic States requires careful
consideration of voter sentiment and institutional reality.

There are many possible objections to this argument. In this
limited space, I can address only two. The first is that voters could be
educated to be more cosmopolitan, thereby making liberal democratic
States more cosmopolitan. The second is that is that liberal democracy
is not sacrosanct; alternative forms of governance may better serve the
ends of international justice. After addressing these two points, I will
consider how liberal democratic States might better achieve the
cosmopolitan aim of helping noncompatriots in ways that are consistent
with the institutional constraints on liberal democracy.

A. Education

One response to my argument is that individuals' uneven
cosmopolitan sentiments are not sacrosanct. Through cosmopolitan
education, citizens in democratic nations could become more
cosmopolitan-minded. In Nussbaum's prominent formulation,
cosmopolitan education can teach individuals to be troubled by world
inequality, to understand what is local and nonessential, and to have a
greater sense of other cultures and peoples needed for genuine
international cooperation. (76) Enhanced cosmopolitan sentiments among
individuals will translate into enhanced cosmopolitan actions by their
governments.

Similar education arguments, and related assumptions about human
perfectibility, have characterized cosmopolitan thinking for centuries.
(77) Modern mass communication is the greatest possible educator about
distant States, their cultures, and the suffering of their peoples. But
despite daily reminders of human suffering around the globe, the peoples
and nations of the world have not acted in ways that are progressively
more altruistic. In the midst of the global communication
transformations during the post-Cold War period (i.e., CNN, the
Internet, and the like), foreign aid as a percentage of GNP among the
wealthiest States dropped precipitously even though these States enjoyed
a "peace dividend" amounting to approximately $450 billion per
year. (78) Similarly, increased knowledge about suffering abroad during
this period has not led to increased humanitarian interventions. (79)

There are many reasons, in addition to the institutional points
already made, why this might be so. Mass communication can in theory
enhance sympathy for noncompatriots by increasing knowledge of their
suffering. But this effect can be counteracted by increased knowledge of
difference, or of countervailing interests, abroad. (80) In addition,
the spread of democracy during the past 200 years may have weakened
cosmopolitan sentiment among citizens in democratic nations. (81) Many
have argued that successful democracies demand a high degree of mutual
commitment and solidarity that is inconsistent with strong cosmopolitan
sentiment. (82) The types of education appropriate for a liberal
democratic culture thus may be in deep tension with Nussbaum's
proposed cosmopolitan educational reforms. (83)

One rejoinder to my skepticism about the transformative potential
of education is that other liberal democracies are more cosmopolitan
than the United States. To take a typically invoked example, Sweden is
held out as a State with a cosmopolitan citizenry that supports
cosmopolitan action by their government. Sweden is among the
world's leaders in foreign aid, and it actively supports
international institutions. U.S. citizens, properly educated, might
become more like the Swedes, and the U.S. government, in turn, might
become more other-regarding in its actions. Implicit in this argument
would be the claim that I have confused the characteristics of liberal
democracy in the United States with the characteristics of liberal
democracy generally.

Swedes may well be more cosmopolitan than Americans; they certainly
are a more homogenous population, and are traditionally more committed
to social democracy. But there is little reason to believe that the
Swedish government engages in greater cosmopolitan action than the
United States. The arguments in Part II suggest that the hurdles to
cosmopolitan action in a liberal democracy are structural: that too much
cosmopolitan sentiment among a citizenry is inconsistent with democratic
statehood; that liberal democratic governments cannot act much beyond
what citizens will support; and that liberal democratic processes create
multiple hurdles to cosmopolitan action, even assuming individual
cosmopolitan sentiments. I believe the evidence from Sweden is
consistent with these claims, and suggests broader structural
constraints on the transformative potential of cosmopolitan education.

Begin with humanitarian intervention. This is perhaps the best
test, for in many cases local costs clearly outweigh local benefits, and
unlike foreign aid and certain treaty regimes, we can identify and
eliminate mixed-motive cases. If anything, the traditionally neutral
Swedes, and Europeans generally, are less cosmopolitan than Americans
when it comes to humanitarian intervention. Since World War II, European
voters have consistently demanded increases in spending on domestic
social programs and decreases in spending on military programs. One
result is that Europe's military capacity to intervene for
humanitarian reasons has diminished significantly. Even when
humanitarian interventions are militarily feasible and close to home--as
in Bosnia and Kosovo in the 1990s--Europeans remained skittish and were
disinclined to intervene. (84)

As for foreign aid: Sweden is described as the "darling of the
Third World" because of its generous foreign aid program. (85)
Sweden traditionally gives much more aid than the United States as a
percentage of GNP. But there is significant evidence that Swedish aid
should not be interpreted as cosmopolitan action. First, while more
extensive than most other countries, Swedish foreign aid is still less
than one percent of its GNP. Moreover, this aid has been cut in the
decade following the end of the Cold War, even though the era was marked
by a general peace and a large peace dividend. (86) Taken alone, this
suggests that aid was at least in part related to broader national
security aims during this period.

In addition, Swedish foreign aid is limited to ideologically
similar nations that have significant trade relations with Sweden and
where heavy Swedish political and business interests predominate. (87)
Although Swedish governments long repudiated any link between aid and
economic self-interest, following the Cold War (when the security
element of aid had diminished), Sweden began to tie its aid explicitly
to the purchase of Swedish goods and services or to favorable financing
arrangements. (88) Swedish foreign aid looks even less charitable when
one considers that Sweden's domestic agricultural and textile
subsidies and other nontariff barriers harm the welfare of poor
agricultural states to a significant degree, and possibly enough to
offset the effect of its foreign aid. (89) None of this is to deny that
many Swedes are motivated by humanitarianism. (90) It is just to point
out the reasons why aid by the Swedish government should not be viewed
as cosmopolitan action as I have used the term.

More broadly, Sweden's foreign aid and other
cosmopolitan-seeming actions must be viewed in the context of
Sweden's status as a "middle power." (91) The label
refers to nations that exercise political and diplomatic power on the
international stage through "soft" mechanisms like food aid,
participation in international institutions, international civil
service, and similar internationalist mechanisms. Middle powers show a
greater devotion to international law and institutions than more
powerful nations, because they can exercise power abroad most
effectively in this fashion. But here, as before, it is important not to
confuse internationalism with cosmopolitanism. Middle powers by
definition have relatively little unilateral influence in
politico-military issues. They focus their diplomatic and related
foreign affairs resources where they can exert the most influence,
especially against the major powers. (92) Their commitments to
international institutions associated with cosmopolitan charity thus
have a structural explanation wholly apart from cosmopolitan sentiment.
The more general point is that the welfare of a State's citizens,
and thus the structure of the State's foreign policy, varies
depending on the power and stature of each State on the international
stage.

My aim in this Part has not been to criticize Sweden, or to try to
dislodge it and similarly situated middle powers from their exalted
status among cosmopolitans. The aim was rather to suggest that
Sweden's internationalism is not the same as cosmopolitanism, and
that it has a structural explanation consistent with the claim that
democratic foreign policy must serve the welfare of local constituents.

B. Alternatives to Liberal Democracy

A second objection is that liberal democracy at the level of the
State should not be viewed as sacrosanct. Cosmopolitan theorists are
usually quick to deny any desire for "world government" or a
"centralized world state," (93) and as mentioned in the
Introduction, many are firmly committed to liberal democratic
territorial governance. But some cosmopolitan theorists propose an array
of global democratic institutions to alleviate international social
injustice. (94) These proposals share many common features, including a
reverence for the United Nations, and the aim of shifting sovereignty
upward toward international institutions. Many believe that the
proliferation of international institutions, and the rise of the
European Union, evidence moves in the globalist direction.

This is not the place for a comprehensive critique of quasi-world
government or global democracy proposals. I will simply mention a few of
the more obvious objections.

First are the well-known normative difficulties with global
governance schemes. The most obvious difficulty concerns the democratic
deficit associated with ever-expanding institutions. A related concern
is that large-scale uniformity inherent in global governance schemes
comes at the expense of too many unsatisfied individual preferences.
Finally, there is the difficulty of human motivation and loyalty with
respect to large, impersonal organizations. (95)

Second is the practical problem of how to generate such
institutions, assuming they were normatively desirable. I know of no
global democracy approach that spells out how or why States--and
especially powerful States like the United States (or for that matter
the European Union)--would submit to a broader form of genuine global
governance. (96) Nations enter into international institutions because
they gain more than they lose from doing so. (For powerful nations, this
is often because they often reap affirmative benefits; for weaker
nations, it is often because not joining the institutions lowers their
welfare more than joining does. (97) Most important and effective
international institutions (most prominently the World Trade
Organization, the World Bank, and the International Monetary Fund) serve
the interests of powerful nations, especially powerful Western nations,
and most especially the United States. Powerful nations do not join
institutions that do not serve their interests.

Successful governance in the domestic realm works differently than
this purely instrumental conception of international governance. There
are two distinguishing factors in the domestic realm: genuine communal
sacrifices (whereby some members sacrifice interests for others), and,
perhaps more important, centralized coercion. (98) Neither of these
factors can work on a global scale. The standard proposal for
international coercion is to strengthen the United Nations. (99) But the
United Nations failed in its original ambition of having a free-standing
police force, and it has failed to reliably transcend the problem of
enforcement ever since. Like all collective security schemes, the United
Nations depends wholly on member states' self-interested (and thus
uneven) acts for coercion. It is hard to see how or why militarily
powerful nations would ever agree to any other scheme.

As for community: There are natural limitations on the size of
democratic government. The larger and more ambitious the government
becomes, the more varied the governed population becomes (in endowment,
culture, language, preferences, and the like), and the more difficult it
becomes to maintain social harmony. (100) The European Union is often
invoked as a counterexample. But the EU is more like the United States
in the eighteenth century and Italy and Germany in the nineteenth--a
process of state-building by smaller units with a common heritage and
common interests. The EU example shows the difficulties that inhere in such a process even among subunit States that in many respects share a
common culture, and that have over two millennia been unified in various
ways (for example, the Roman Empire, the Catholic Church, the Holy Roman
Empire, and the Concert of Europe). It does not provide a map for global
government of peoples of radically different cultures, histories, and
endowments.

C. A More Realistic Cosmopolitanism

An alternative to altering constituent preferences or rejecting
liberal democratic government is to accept the basic plausibility
constraints on the ability of liberal democracies to engage in strong
cosmopolitan action, and to work within these limits to better achieve
the cosmopolitan end of assisting the less fortunate. Below I sketch
some very general elements of a more realistic cosmopolitanism.

1. Institutionalism.

According to a prominent cosmopolitan thinker,
"[c]osmopolitanism is a moral outlook, not an institutional
prescription." (101) The problem with this claim is that
cosmopolitan thinkers actively engage in institutional prescription
without attention to the institutions' mechanisms and limitations.
As Part I showed, these thinkers take human limitations seriously. But
just as human limitations help define and limit what duties are
appropriate to impose on individuals, so too must institutional
limitations be considered in defining and limiting what duties are
appropriate to impose on states. These institutional limitations have
special force when the institutions are governments of liberal
democracies. Liberal democratic governments are not only guided and
limited by their citizens, but also have well-known pathologies, some of
which are described above, that further limit the possibilities of
cosmopolitan action. And on top of this are the challenges of collective
action on the international stage. These and scores of other
institutional design issues are not merely relevant to cosmopolitan
means. They are also crucial to the identification of appropriate
cosmopolitan ends.

2. Instrumentalism.

To take institutions more seriously, cosmopolitan theorists must
consider the costs as well as the benefits of various cosmopolitan
proposals. Cosmopolitan theorists often commit the nirvana fallacy of
comparing the current arrangement of nations, with its manifest evils,
to the hypothetically perfect cosmopolitan governance proposals, without
consideration of the proposals' pathologies. (102) To take one of
many examples, Nussbaum's environmental, tax, trade, and labor
proposals described above (103) do not consider ex ante or
self-defeating effects. Many believe, for example, that such proposals
will adversely affect investment in poorer countries and thus make the
peoples of the poorer countries worse off. Issues of this sort are of
course contested. The point here is simply that a cosmopolitanism that
takes institutions seriously is a cosmopolitanism that does serious
cost-benefit analysis.

3. Civil society.

One lesson that institutional analysis teaches is that the
institutions most likely to engage in effective cosmopolitan action are
ones with relatively homogenous cosmopolitan sentiments among group
members. Such groups are most likely to be found in civil society,
"the space of uncoerced human association and also the set of
relational networks--formed for the sake of family, faith, interest and
ideology--that fill this space." (104) Unlike States, civil society
can effectively engage in cosmopolitan action, precisely because civil
society groups consist of like-minded persons who come together
voluntarily to take advantage of the collective action powers that
institutions can deliver. Relatedly, cosmopolitan action by such
voluntary groups (where costless exit is possible) is, all things equal,
more legitimate than cosmopolitan action by liberal democracies,
precisely because centralized coercion is not needed in the former case.

4. National interest.

To say that civil society can more effectively engage in
cosmopolitan action than liberal democratic governments is not to say
that civil society can more effectively assist the world's least
well off. Liberal democratic government is more powerful than civil
society. But it can generally only act in ways that enhance national
welfare. Often, it is possible for a State to enhance its welfare in
ways that helps others. By treaty, nations can set terms of cooperation
with other nations that can make all better off. Or by intervention, one
State can serve its strategic interests in ways that help local
populations in other States.

The limiting principle here, however, is national interest as I
have defined it in this Article. This means that the best we can hope
for is uneven humanitarian intervention that comports with the strategic
and security interests that would be furthered by the potentially
intervening nations. It also means that sometimes a treaty that makes
many nations better off will not be acceptable to other nations, as is
often the case when the United States opts out of certain treaty
regimes. Sometimes there simply won't be a deal to reach, or deals
that seem to promote justice might have to be modified, sometimes
dramatically, to generate requisite consent.

5. Double standards.

One consequence of accepting the national interest limitation on
other-regarding action is that double standards are sometimes inevitable
if the aim is to get nations to bring the most relief to those who are
least well off. Double standards are embedded throughout international
law--most prominently in the United Nations Charter, which purports to
recognize sovereign equality, but which dramatically skews
decisionmaking authority to reflect the power asymmetries of the 1940s.
Double standards are often a byproduct of the circumstances in which
national action is available to help people in other nations.

This point is most obvious in cases of humanitarian intervention,
where intervention usually depends on the welfare concerns of the
intervening nation. The resulting uneven patterns of enforcement are
often derided as hypocritical. Opportunistic interventions are also what
give rise to the (not unjustified) concern that many so-called
humanitarian interventions are ruses for invasions motivated in large
part by strategic ends. A clear-eyed analysis of interventions would
realize that such mixed-motive cases are probably the best we can hope
for. The presence of mixed motives does not detract from the fact that
some such interventions might help local populations, as the Kosovo
intervention arguably did. Those who want to eliminate double standards
aim to increase intervention to all cases of massive human rights
abuses. But the much more likely possibility is that the elimination of
double standards would be achieved by eliminating all humanitarian
interventions.

A similar point applies to the ICC. The ICC framers rejected the
United States's proposal to require Security Council referrals for
all prosecutions, and thus to effectively immunize the five
veto-wielding members, and their close allies, from prosecution. The ICC
framers rejected such double standards as inconsistent with the
international rule of law. One consequence is that the United States
opposes the ICC. There is a case to be made that an ICC without U.S.
support harms global human rights enforcement more than an ICC with a
Security Council veto or a world with no ICC at all. (105) The
counterargument is that by insisting on the equal application of ICC
principles to all nations, the ICC furthers long-term human rights
interests even at the short-term expense of U.S. opposition. My aim here
is not to resolve this disagreement. My aim is to urge that this is the
right kind of debate--a debate that focuses instrumentally on
what's best for those who suffer, and not on the moral
acceptability of double standards in international relations.

CONCLUSION

This Article has proceeded in the spirit of being a
"corrective to the exuberance of utopianism." (106) The main
claim has been that there is a deep tension between liberal democratic
governance and the increasing demands that liberal democratic States
engage in cosmopolitan action. To be relevant and effective,
cosmopolitan thinking must take the institutions and limitations of
liberal democracy much more seriously.

(14.) Id.; see also id. ("No real institutions will be perfect
either; but they can coerce better behavior than people would likely
attain without them.... Institutions both coerce correct conduct and
allow people a breathing space, so that their life is not always filled
up with the demands of correct conduct."). Nussbaum continues:

[P]olitical institutions need to be cognizant of the deepest dangers
in human psychology and to provide bulwarks against those dangers:
thus they do not simply model us at our best, they also stand
between us and our worst. (This was a key insight of Madison, and is
built into the foundations of the U.S. political order.)

[S]ince justification in political theory is intended to produce not
just assent to a proposition, but acceptance of and support for a
set of institutions and a form of life, the most important facts
about individuals for these purposes are facts of motivational
psychology and facts about what individuals have reasons to do and
want.
....
[We want principles that] motivate and command respect and that
will therefore give authority to results which are reached in
accordance with them ....

(46.) Cf HENRY SIDGWICK, THE ELEMENTS OF POLITICS 309 (4th ed.
1919) (defending "the national ideals of political
organisation," under which foreign policy should "promote the
interests of a determinate group of human beings, bound together by the
tie of a common nationality").

(48.) Letter from Thomas Jefferson to James Madison (Sept. 6,
1789), in 15 THE PAPERS OF THOMAS JEFFERSON 392 (Julian P. Boyd ed.,
1958). For similar sentiments, see Debates in the Convention of the
State of North Carolina on the Adoption of the Federal Constitution, in
4 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE
ADOPTION OF THE FEDERAL CONSTITUTION 107-08 (1863) (remarks of James
Iredell); The Pennsylvania Convention, Tues., 11 December 1787, in 2 THE
DOCUMENTARY HISTORY OF RATIFICATION OF THE CONSTITUTION: RATIFICATION OF
THE CONSTITUTION BY THE STATES 583 (Merrill Jensen ed., 1976) (remarks
of James Wilson). But see John C. Yoo, The Continuation of Politics by
Other Means: The Original Understanding of War Powers, 84 CAL. L. REV.
167 (1996) (arguing that Framers did not intend Congress to have a legal
check on presidential war power).

(49.) IMMANUEL KANT, To Perpetual Peace (1795), in PERPETUAL PEACE
AND OTHER ESSAYS ON POLITICS, HISTORY AND MORALS 341 (Ted Humphrey
trans., 1983).

(50.) See, e.g., BRUCE RUSSETT, GRASPING THE DEMOCRATIC PEACE:
PRINCIPLES FOR A POST-COLD WAR WORLD 38-42 (1993). It is worth noting
here that the agency-cost-reduction idea applies to all war-related
activities by democracies, and cannot by itself explain the democratic
peace thesis, which is limited to wars between democracies.

(51.) There are essentially two such processes: the treatymaking
process, which requires the consent of two-thirds of the Senate, and the
process of making congressional-executive agreements, which requires the
consent of the majorities in both Houses. The President can enter into
"pure" executive agreements on his authority alone, but the
scope of the power is limited, and the fact is that there are relatively
few pure executive agreements.

(52.) See Vienna Convention on the Law of Treaties, May 23, 1969,
art. 56, 1155 U.N.T.S. 331, 345.

(55.) Some of the other benefits are canvassed in CHARLES LIPSON,
RELIABLE PARTNERS: How DEMOCRACIES HAVE MADE A SEPARATE PEACE
(forthcoming 2003), MIROSLAV NINCIC, DEMOCRACY AND FOREIGN POLICY: THE
FALLACY OF POLITICAL REALISM (1992), and DAN REITER & ALLAN C. SWAM,
DEMOCRACIES AT WAR (2002).

(56.) See, e.g., INT'L COMM'N ON INTERVENTION & STATE
SOVEREIGNTY, THE RESPONSIBILITY TO PROTECT: REPORT OF THE INTERNATIONAL
COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY (2001); SAMANTHA POWER,
"A PROBLEM FROM HELL": AMERICA AND THE AGE OF GENOCIDE (2002);
Fernando R. Teson, The Liberal Case for Humanitarian Intervention, in
HUMANITARIAN INTERVENTION: ETHICAL, LEGAL AND POLITICAL DILEMMAS (J.L.
Holzgrefe & Robert O. Keohane eds., forthcoming 2003) (on file with
author).

(57.) Even in this context, national interest matters. For example,
in 1992, National Security Advisor Scowcroft justified the ostensibly humanitarian intervention in Somalia as necessary to demonstrate, in the
wake of the recent failure to intervene in Bosnia, that the decision not
to intervene in Bosnia was unrelated to the Bosnian victims' Muslim
faith, and that the United States was not afraid to intervene abroad.
See POWER, supra note 56, at 293.

(58.) Americans support various types of "passive" (i.e.,
relatively noncostly) intervention in the face of atrocities or
starvation, but this support drops precipitously with the introduction
of ground troops or the possibility of casualties. See Richard Sobel,
The Polls--Trends: United States Intervention in Bosnia, 62 PUB. OPINION
Q. 250 (1998). Sobel also indicates that opposition to intervention in
Bosnia was more intense than support for intervention, a crucial factor
for any democratic leader. For a review and qualification of the
evidence supporting the "casualties" hypothesis, see James
Burk, Public Support for Peacekeeping in Lebanon and Somalia: Assessing
the Casualties Hypothesis, 114 POE. Sci. Q. 53 (1999).

(59.) See POWER, supra note 56, at 283-88, 304-05.

(60.) See id. at 317.

(61.) See id. at 364-84.

(62.) See id. at 454-58; David Luban, Intervention and
Civilization: Some Unhappy Lessons of the Kosovo War, in GLOBAL JUSTICE
AND TRANSNATIONAL POLITICS 79 (Pablo De Greiff & Ciaran Cronin eds.,
2002).

(63.) Luban, supra note 62, at 85-86.

(64.) Power's most extended treatment of the issue can be
found in POWER, supra note 56, at 305-06.

(66.) See, e.g., CHI. COUNCIL ON FOREIGN REL., WORLDVIEW 2002:
AMERICAN PUBLIC OPINION & FOREIGN POLICY 34 (2002) [hereinafter CCFR 2002 REPORT] (finding that 71% of Americans supported U.S. participation
in the ICC and 64% supported U.S. participation in the Kyoto agreement),
available at http://www.worldviews.org/
detailreports/usreport/index.htm.

(67.) Byrd-Hagel Resolution, S. Res. 98, 105th Cong. (1997). The
Senate added that any treaty that satisfied these criteria would also
need to be accompanied by a detailed cost analysis of its
implementation.

(69.) See CCFR 2002 REPORT, supra note 66, at 63-73 (comparing
leader and public attitudes to various foreign policy issues, and
showing that, by wide margins, leaders are more supportive of active
internationalism, and the public places a higher priority on domestic as
opposed to international programs); see also ERIC ALTERMAN, WHO SPEAKS
FOR AMERICA? WHY DEMOCRACY MATTERS IN FOREIGN POLICY 14-15 (1998)
(surveying public opinion evidence in support of similar conclusion);
Benjamin I. Page & Jason Barabas, Foreign Policy Gaps Between
Citizens and Leaders, 44 INT'L STUD. Q. 339 (2000) (analyzing
similar results based on twenty-four years of Chicago Council of Foreign
Relations surveys).

(70.) CCFR 2002 REPORT, supra note 66, at 20; see also CHI. COUNCIL
ON FOREIGN REL., AMERICAN PUBLIC OPINION & U.S. FOREIGN POLICY 1999,
at 18 (John E. Rielly ed., 1999) (noting that Americans possess
"limited altruism," and that "[n]otably absent from ...
first-tier and second-tier priorities are goals that might be associated
with altruistic internationalism, or goals that would primarily benefit
others"), available at
http://www.ccfr.org/publications/opinion/opinion.html.

(71.) Page & Barabas, supra note 69, at 347. The most recent
Chicago Council on Foreign Relations survey shows a spike in support for
giving a higher priority to foreign affairs following the September 11
attacks, but as the CCFR Report emphasizes, the reasons for this have to
do with local security enhancement. See CCFR 2002 REPORT, supra note 66.
But see STEVEN KULL & I.M. DESTLER, MISREADING THE PUBLIC: THE MYTH
OF A NEW ISOLATIONALISM (1999) (arguing that, despite polling data and
political branch behavior, the U.S. public supports more active
international engagement).

(72.) See, e.g., ROPERASW, AMERICANS' ATTITUDES TOWARD AN
INTERNATIONAL CRIMINAL COURT (2002) (finding that 61% of Americans have
never heard or read about the International Criminal Court), available
at http://www.lchr.org/media/2001_1996/ roper_report.pdf; Steven Kull,
Americans on the Global Warming Treaty, Program on Int'l Pol'y
Attitudes (citing a September 1998 Wirthlin poll in which 86% of
Americans had never heard of the Kyoto Protocol on global warming, and
in which, after details of the conference were given, 69% said they had
not heard of it) [hereinafter PIPA, Americans Survey], at
http://www.pipa.org/online_reports.html/GlobalWarming/buenos_aires02.00.html (last modified Feb. 4, 2000). Similarly, one week after the Senate
declined to consent to the Test Ban Treaty, 50% of American voters had
not heard about the vote, and 61% had not heard of the reasons why some
Senators voted for the treaty and others against it. Pew Research Center for the People and the Press, Survey Reports: Senate Test Ban Little
Noticed, Less Understood (Oct. 21, 1999), at
http://peoplepress.org/reports/print.php3?ReportID=52.

(73.) See PIPA, Americans Survey, supra note 72 (finding that 76%
are willing to pay $10 per month to significantly reduce global warming,
63% are willing to pay $25 per month, 36% are willing to pay $50 per
month, 19% are willing to pay $75 per month, and 11% are willing to pay
$100 per month). The inconsistency of polling data is made clear by a
P1PA poll conducted one month earlier, in which 63% of Americans agreed
that "[p]rotecting the environment is so important that
requirements and standards cannot be too high and continuing
environmental improvements must be made regardless of cost." Id.
(emphasis added).

(74.) See supra note 58; see also Richard Sobel, U.S. and European
Attitudes Toward Intervention in the Former Yugoslavia: Mourir pour la
Bosnie?, in THE WORLD AND YUGOSLAVIA'S WARS ch. 6 (Richard H.
Ullman ed., 1998) (noting that 67% of Americans would support a U.S.
deployment in Bosnia if no American soldiers were killed, but only 31%
would continue to approve if 100 American soldiers were killed), at
http://www.ciaonet.org/book/ulr01/u1r01g.html.

(80.) I take this to be Niebuhr's point. See REINHOLD NIEBUHR,
MORAL MAN AND IMMORAL SOCIETY: A STUDY IN ETHICS AND POLITICS 85 (1932).

(81.) Cf. Hans J. Morgenthau, The Twilight of International
Morality, 58 ETHICS 79, 8897 (1948) (arguing that the rise of democracy
and nationalism undermines the moral limitations of international
politics).

(82.) See sources cited supra note 44.

(83.) Cf. Michael W. McConnell, Don't Neglect the Little
Platoons, in NUSSBAUM, supra note 44, at 78 (arguing that cosmopolitan
education of the type proposed by Nussbaum may be destructive, and that
the best way to promote concern for others is to first foster affection
for the local).

(84.) See, e.g., ROBERT KAGAN, OF PARADISE AND POWER: AMERICA VS.
EUROPE IN THE NEW WORLD ORDER (2003). On Sweden in particular, see Bjorn
Moller, The Nordic Countries: Whither the West's Conscience?, in
KOSOVO AND THE CHALLENGE OF HUMANITARIAN INTERVENTION: SELECTIVE
INDIGNATION, COLLECTIVE ACTION, AND INTERNATIONAL CITIZENSHIP 151
(Albrecht Schnabel & Ramesh Thakur eds., 2001).

(86.) See U.N. DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT 2002:
DEEPENING DEMOCRACY IN A FRAGMENTED WORLD 216 (2002) (noting Swedish aid
dropped from 0.91% of GNP to 0.8% of GNP between 1990 and 2000),
available at http://www.undp.org/hdr2002/.

(89.) Although the harmful effects of subsidies on developing
countries are hard to quantify, they are clearly significant. See ACTION
AID, FARMGATE: THE DEVELOPMENTAL IMPACT OF AGRICULTURAL SUBSIDIES (2002)
(noting that governments in rich countries are paying over $300 billion
each year to subsidize their agricultural sectors, which is six times
the total amount of aid to developing countries), available at
http://www.actionaid.org/resources/foodrights/foodrights.shtml. I have
been unable to determine the specific effects of Swedish agricultural
(and textile) subsidies, but again, the subsidies are significant. See
Magnus Blomstrom, Sweden's Trade and Investment Policies vis-a-vis
the Third World, in THE OTHER SIDE OF INTERNATIONAL DEVELOPMENT: NON-AID
ECONOMIC RELATIONS WITH DEVELOPING COUNTRIES OF CANADA, DENMARK, THE
NETHERLANDS, NORWAY, AND SWEDEN 167, 173, 175 (1990); Carl Hamilton,
Agricultural Protectionism in Sweden, 1970-1980, 13 EUR. REP. AGRIC.
ECOLOGY 75 (1986).

(90.) Cf. DAVID HALLORAN LUMSDAINE, MORAL VISION IN INTERNATIONAL
POLITICS: THE FOREIGN AID REGIME, 1949-1989 (1993) (arguing that foreign
aid has a large humanitarian component). Lumsdaine's thesis about
the moral basis for foreign aid was based on Cold War data and is not
borne out in the post-Cold War world. See Schraeder et al., supra note
85.

(92.) Cf. Robert O. Keohane, Lilliputians' Dilemmas: Small
States in International Politics, 23 INT'L ORG. 291,296 (1969)
(describing a middle power as "a state whose leaders consider that
it cannot act alone effectively but may be able to have a systemic
impact in a small group or through an international institution")
(emphasis deleted).

(95.) See generally NAGEL, supra note 33, at 169-79; Michael
Walzer, Governing the Globe: What Is the Best We Can Do?, DISSENT, Fall
2000, at 44.

(96.) Even Walzer's effort, which is among the best and most
sensible analyses of the tradeoffs of international governance schemes,
does not explain how his preferred international governance scheme would
actually come about. See Walzer, supra note 95.

(97.) See LLOYD GRUBER, RULING THE WORLD: POWER POLITICS AND THE
RISE OF SUPRANATIONAL INSTITUTIONS (2000).

Jack Goldsmith, Professor of Law, University of Chicago (on leave);
Special Counsel to the General Counsel, U.S. Department of Defense. The
views expressed here are the author's alone, and do not reflect the
views of the Department of Defense or the U.S. government. Thanks to
Curtis Bradley, Ryan Goodman, Stephen Krasner, Daryl Levinson, Sebastian
Mallaby, Derek Jinks, Jim Madigan, Eric Posner, Duncan Snidal, Paul
Stephan, David Strauss, Cass Sunstein, Adrian Vermeule, John Yoo, and
workshop participants at the University of Chicago and NYU law schools
for valuable comments, and Bryan Dayton for valuable research
assistance.

COPYRIGHT 2003 Stanford Law School
No portion of this article can be reproduced without the express written permission from the copyright holder.